Who Controls the Comptroller?

By Richard Lacayo

A debate that centers on the proper role of the Comptroller General of the U.S. would seem poor bait to draw a crowd. Yet the courtroom of the U.S. Supreme Court was packed last week with visitors who came to watch a tangled legal battle over just that issue, and with good reason. Rarely has such a narrow question held such wide implications for the conduct of Government. The real issue at hand was the budget-balancing scheme of the storied Gramm-Rudman Act. Whether the Comptroller is a servant of Congress or an impartial accountant is likely to be the point on which the court will decide the law's fate.

Accordingly, among the most intent observers were some 20 members of Congress, including two of the law's chief sponsors, Republican Senators Phil Gramm of Texas and Warren Rudman of New Hampshire, and one of its main opponents, Congressman Mike Synar, the Oklahoma Democrat who with eleven other members of Congress from both parties brought suit last December to invalidate the law. The legislation establishes declining annual deficit targets until the goal of a balanced budget is reached in fiscal 1991; failure by Congress and the President to meet those tar gets means that the Comptroller, who heads the General Accounting Office, must calculate and order the necessary cuts under a specified formula. The twelve Congressmen, all of whom voted against the bill, argued that this gave to the Comptroller broad powers of the purse that the Constitution does not permit Congress to relinquish.

In February a panel of three federal judges rejected that argument but threw out the law anyway on a flipped-over version of the objection. Gramm-Rudman did not infringe upon the authority of Congress, they said, but upon that of the President. The Constitution forbids giving Executive powers to an official who, like the Comptroller, is removable by the legislature. In effect, the judges said, an officer who carries out Executive Branch functions must not be beholden to another branch.

That argument sits well with the White House, which is also suing to in validate Gramm-Rudman. The Reagan Administration's chief courtroom attorney, Solicitor General Charles Fried, pressed the Administration's view before the Supreme Court last week. The Comptroller's duties under Gramm-Rudman "affect every nook and cranny of the Executive Department," he contended. During two hours of argument, twice the normally allotted time, lawyers for the House, the Senate and the Comptroller came to the law's defense. Steven Ross, representing the bipartisan leadership of the House, rejected the claim that the Comptroller was answerable to Capitol Hill, arguing that Congress had assigned him a role in the Gramm-Rudman scheme precisely to ensure that the budget-cutting calculations would be "walled off" from political considerations.

But, asked Justice Sandra Day O'Connor, "wouldn't you concede that the historic role of the Comptroller General is really that of an employee of the Legislative Branch?" No, indicated Ross, the Comptroller was simply a numbers cruncher, "a computator of statutory formulas." Justice William Rehnquist seemed skeptical. Harking back to his days as a Justice Department official in the Nixon Administration, he got a laugh from the courtroom by recalling that "if the Administration wanted a favorable opinion, it went to the Attorney General. If Congress wanted a favorable opinion, it went to the Comptroller General."

Some legal scholars scoff at the idea that the separation of powers envisioned under the Constitution is endangered by hybrid officials like the Comptroller. They contend that the existing system of checks and balances is sufficiently vigorous to keep any one branch from dominating the others, and that to insist always on ironclad divisions would inhibit the flexible assignment of Government functions. Far more worrisome to many legal observers is the possibility that the court might invalidate Gramm-Rudman on the broad ground that only officials who can be removed by the President should exercise Executive powers, a ruling that they say could jeopardize the independence of more than a dozen regulatory agencies ranging from the Federal Communications Commission to the Federal Reserve Board. "Independent agencies would bite the dust," warns Stanford University Law Professor Gerald Gunther. When Administration Lawyer Fried tried to assure the court last week that such arguments were simply a scare tactic, he got a quick reply from Justice O'Connor. "Mr. Fried," she said, "I'll confess you scared me."

The suspense should be over in little more than two months, by which time the Justices are expected to hand down their decision. Most court watchers expect that if the law is struck down, the grounds will be narrow. The precedents are so unclear, the implications of any broad new rule so uncharted, and popular or legal consensus on the wisest course so undeveloped that small, tentative steps appear more advisable than bold strides. --By Richard Lacayo. Reported by Anne Constable/Washington

With reporting by Anne Constable/Washington